Well, finally! A lawsuit just filed in Florida raises an important and far too frequently ignored aspect of the First Amendment’s religion clauses. What happens when “religious liberty” becomes a code word meaning “Liberty for my particular religion’s doctrine, but not for yours?”
The Supreme Court majority that (according to the leaked draft opinion) will overturn Roe v. Wade within the next few weeks is composed of Catholics who have been very vocal about the importance of protecting religious liberty–as they evidently define it. The problem is, their definition of liberty differs from that held by a very large number of Americans who believe that all citizens are free to follow the doctrines of their particular religions. When applied to the issue of abortion, for example, people whose beliefs prohibit it are protected from measures requiring it, and people whose beliefs allow (or even, in some situations, require) it can follow their beliefs.
In other words, if your beliefs prohibit abortion, you don’t have to have one. If they don’t, you can.
That definition of religious liberty is at the heart of the lawsuit filed in Florida. According to the Religion News Service,
A new Florida law prohibiting abortion after 15 weeks with some exceptions violates religious freedom rights of Jews in addition to the state constitution’s privacy protections, a synagogue claims in a lawsuit.
The lawsuit filed by the Congregation L’Dor Va-Dor of Boynton Beach contends the law that takes effect July 1 violates Jewish teachings, which state abortion “is required if necessary to protect the health, mental or physical well-being of the woman” and for other reasons.
“As such, the act prohibits Jewish women from practicing their faith free of government intrusion and this violates their privacy rights and religious freedom,” says the lawsuit, filed last week in Leon County Circuit Court.
The lawsuit adds that people who “do not share the religious views reflected in the act will suffer” and that it “threatens the Jewish people by imposing the laws of other religions upon Jews.”
The new Florida law has exceptions only for terminations necessary to save the life of the mother or prevent serious injury, or for a fetus with a fatal abnormality. It does not contain exemptions for pregnancies resulting from rape, incest or human trafficking.
The Rabbi of the synagogue that filed the lawsuit was quoted as saying that when separation of religion and government crumbles, religious minorities often suffer. And he noted that DeSantis had signed the law at an evangelical Christian church.
This lawsuit is yet another illustration of an element of the expected decision that has received far too little attention: it goes to the very heart of current constitutional jurisprudence, which is concerned with drawing a line between those matters that government can properly regulate and those that are to be left to the individual. Reversal of Roe attacks the conceptual underpinning of a doctrine known as “substantive due process,” which is focused on where that line must be drawn, and the very simple–and very profound–question: who decides?
In a free country–a country that takes liberty seriously–who gets to decide what prayer you say, what book you read, who you marry, whether and when you procreate?
For the past fifty years, with some hiccups, American law has answered that question by respecting the rights of individuals and religious communities to determine those and similarly personal issues–issues that the Court has dubbed “intimate”–for themselves. I would argue that the right to make our own personal, medical, political and religious decisions in the exercise of our individual consciences is the proper definition of liberty.
(Decisions to forego mask wearing and other decisions that endanger others, not so much.)
America is currently going through a wrenching transition. Religious and racial groups that were once so dominant that minority communities and their beliefs were (at best) marginalized and ignored are losing their cultural dominance, and many members of those groups are hysterical about it. Others are simply clueless–so insulated within traditional ways of understanding the society they inhabit that they are unable to understand the claims of those who differ–as Jewish law differs from much of Christianity on the issue of abortion.
“Freedom for me, but not for thee” isn’t freedom at all. It’s privilege, and privileges can be withdrawn. What’s that observation we civil libertarians love to quote? “Poison gas is a great weapon until the wind shifts.”
Either religious liberty is liberty for adherents of all religions, or it isn’t liberty at all. This lawsuit illustrates the danger of letting government make decisions that favor the doctrines of some religions to the detriment of others.